State officials resumed their timetable: Ferguson was to be executed at 6 p.m. Tuesday.
Ferguson’s lawyers scrambled to appeal to the U.S. Supreme Court, which had consistently denied his pleas over the years. It did so again on Monday.
The execution at the prison, about 35 miles northwest of Gainesville, appeared to be on schedule.
State officials and relatives of the victims — because of last-minute delays, Michael Worley could not make it — were ushered into a waiting room.
Three news media witnesses, the lowest turnout in decades, were placed in a separate waiting room. No family members visited. A prison chaplain did.
Ferguson had his last meal: a $3.30 “country fried” chicken sandwich, bought from the prison’s canteen.
From his holding cell, he declined to issue a public statement. Then, he waited.
But just before 6 p.m., Florida Assistant Attorney General Stephen Ake got a phone call from one of Ferguson’s lawyers. Judge Hurley was on the phone for an emergency hearing.
Hurley this time denied Ferguson’s lawyers’ petition, but issued a “certificate of appealability” on whether the Florida Supreme Court made the wrong decision in upholding Judge Glant’s decision.
The “certificate of appealability” legal designation was crucial. Under its rules of procedure, the 11th Circuit Court of Appeals said it had no choice but to take up the mental health matter.
Around 8 p.m. Tuesday, the Atlanta court issued a stay on Ferguson’s execution.
The Attorney General’s Office, determined to see the execution through, quickly filed an appeal to the U.S. Supreme Court. In a strongly worded motion, Ake accused Ferguson’s lawyers of improper contact with Judge Hurley.
The latest appeal makes a “mockery” of the state’s looking for closure after “35 years of litigation,” Ake wrote.
Handman, Ferguson’s lawyer, shot back, in his reply, that the “mockery” was potentially putting a mentally ill man to death.
“His life hangs in the balance,” wrote Handman, who denied having any improper contact with the judge.
As the clock crept toward midnight Tuesday, the U.S. Supreme Court declined to say the Atlanta court acted improperly. The stay remained in place.
Now, a new round of paperwork will be filed to the Atlanta appeals court in early November.
Judge Hurley’s role in the high-profile appeals has captured the notice of legal observers.
He is no stranger to the Ferguson case. In 2005, he heard testimony on Ferguson’s mental health claim, denying the man’s efforts.
“The evidence establishes that [Ferguson] understands that he is on Death Row and generally understands the nature of the various proceedings related to his murder convictions,” Hurley wrote back then.
His recent decision now baffles former Miami-Dade senior prosecutor David Waksman, who for years helped fight Ferguson’s appeals.
“Judge Hurley ruled the guy was malingering,” Waksman said Wednesday. “I find it so strange that, eight years later, he wants more hearings. I don’t understand that.”
But Ferguson’s lawyers say new, compelling experts have concluded that the man is not faking his mental illness.
“We are pleased that the U.S. Court of Appeals for the 11th Circuit will now fully consider the merits of Mr. Ferguson’s competency claim,” said another Ferguson attorney, Ben Lewis.
“The Eighth Amendment prohibits the execution of the insane. We think that prohibition clearly applies to a man who thinks he is the Prince of God, who enjoys special powers derived from the sun, and who is being executed so he can save the world from a Communist plot.”